Opinion
No. 14-03-01266-CV
Memorandum Opinion filed November 24, 2004.
On Appeal from the 308th District Court Harris County, Texas, Trial Court Cause No. 02-17220.
Affirmed.
Panel consists of Justices YATES, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
In this restricted appeal, appellant Christopher Childers challenges a post-answer default judgment of divorce on the basis that he did not receive notice of the final trial setting. Because we conclude the record contains evidence appellant was served with notice of the hearing, error is not apparent from the face of the record, and thus, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Paula Childers filed for divorce from Christopher Childers in April 2002. In his answer filed in August 2002, appellant provided an address where he could be notified of all proceedings. On February 5, 2003, Paula's counsel sent a letter by certified mail to appellant at his address of record, informing him the divorce had been set for trial on May 5, 2003. When appellant failed to appear on May 5, the trial court entered a default judgment against him.
Nothing in the record indicates appellant ever changed his record address.
II. DISCUSSION
In one issue, appellant contends the default judgment should be set aside because his failure to appear resulted from a lack of notice of the trial setting.
In order to prevail on a restricted appeal, an appellant must demonstrate the following: (1) the notice of restricted appeal was filed within six months of the date of the judgment or order; (2) he was a party to the suit; (3) he did not participate in the hearing that resulted in the judgment complained of and did not file a timely post-judgment motion; and (4) error is apparent from the face of the record. See TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). For purposes of a restricted appeal, the "record" consists of all papers filed in the appeal, including the statement of facts. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). In this case, appellant has met the first three requirements; therefore, he need only show that the record affirmatively demonstrates he did not receive notice of the trial setting.
We presume a trial court hears a case only after the parties receive proper notice. Jones v. Tex. Dept. of Public Safety, 803 S.W.2d 760, 761 (Tex.App.-Houston [14th Dist.] 1991, no writ). Texas Rule of Civil Procedure 245 requires reasonable notice of not less than forty-five days of a first trial setting of a contested case. TEX. R. CIV. P. 245. Under Rule 21a of the Rules of Civil Procedure, all notices, other than citation, may be served by delivering a copy to the party either in person, by agent, or by certified or registered mail, at the party's last known address. TEX. R. CIV. P. 21a; Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). When a defendant does not receive notice of a post-answer default judgment proceeding, he or she is deprived of due process. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).
Although appellant complains that he did not receive notice of the trial setting, the record contains evidence to the contrary. Specifically, the record reflects that at trial, Paula introduced Exhibit 1 which consisted of two items: (1) a letter, addressed to appellant's address of record, informing appellant of the trial setting; and (2) a certified mail receipt for the letter, signed as "received by" appellant's mother in her capacity as appellant's agent. Appellant does not refute this evidence and further, does not cite to any authority stating this method of service was insufficient to provide him with notice of the trial setting. Therefore, we cannot say appellant has demonstrated that his lack of notice is apparent from the face of record. Accordingly, appellant's sole issue is overruled and the judgment of the trial court is affirmed.
Above the signature line on the return receipt for the letter appear two boxes identifying the person signing as "addressee" or "agent." In Exhibit 1, the "agent" box is checked and the signature is that of Nancy Pfardrischer. Ms. Pfardrischer was identified as appellant's mother at the default judgment hearing.
Although Rule 21a creates the presumption that a mailed letter, properly addressed and with postage paid, is received by the addressee, we have no need for the presumption because there is actual proof of receipt. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).